Exhibit 99.02
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
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September 30, 1999, by and among ASYMETRIX LEARNING SYSTEMS, INC., a Delaware
corporation (the "Company"), and each of the entities whose names appear on the
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signature pages hereof. Such entities are each referred to herein as a
"Purchaser" and collectively as the "Purchasers".
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The Company has agreed, on the terms and subject to the conditions set
forth in the Securities Purchase Agreement of even date herewith (the
"Securities Purchase Agreement"), to issue and sell to each Purchaser shares
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(the "Preferred Shares") of the Company's Series A Convertible Preferred Stock,
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par value $.01 per share (the "Preferred Stock"), and a Warrant (each, a
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"Warrant" and, when taken together with all of the warrants issued pursuant to
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the Securities Purchase Agreement, the "Warrants") entitling the holder thereof
to purchase shares (the "Warrant Shares") of Common Stock. The Preferred Shares
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are convertible pursuant to a Certificate of Designation (the "Certificate of
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Designation") into shares (the "Conversion Shares") of the Company's Common
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Stock, par value $.01 per share (the "Common Stock").
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In order to induce each Purchaser to enter into the Securities Purchase
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended (the "Securities Act"), and under
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applicable state securities laws. Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Securities
Purchase Agreement or the Certificate of Designation, as applicable.
In consideration of each Purchaser entering into the Securities Purchase
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
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For purposes of this Agreement, the following terms shall have the meanings
specified:
(a) "Blackout Period" means such day or days, not to exceed an
aggregate of thirty (30) days during any period of twelve (12) consecutive
months, with respect to which the Board of Directors of the Company determines
reasonably and in good faith (A) that an amendment or supplement to the
Registration Statement (as defined below) or prospectus contained therein is
necessary, in light of subsequent events, in order to correct a material
misstatement made therein or to include information the absence of which would
render the Registration Statement or such prospectus materially misleading and
(B) that the filing of such amendment or supplement would result in the
disclosure of information which the Company has a bona fide business purpose for
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preserving as confidential; provided that the Company shall be entitled to
impose no more than two (2) Blackout Periods during any period of twelve (12)
consecutive months;
(b) "Business Day" and "Closing Date" shall have the respective
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meanings specified in the Securities Purchase Agreement;
(c) "Holder" means any person owning or having the right to acquire,
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through conversion of the Preferred Shares or exercise of the
Warrants, Registrable Securities, including initially each Purchaser
and thereafter any permitted assignee thereof;
(d) "Effective Date" means the date on which the Registration
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Statement is declared effective by the Securities and Exchange
Commission (the "Commission").
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(e) "Filing Deadline" means the ninetieth (90th) day following the
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Closing Date; provided, however, that if such ninetieth day is not a
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Business Day, the Filing Deadline shall be the Business Day
immediately following such ninetieth day;
(f) "Premium Shares" shall have the meaning set forth in the
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Certificate of Designation.
(g) "Register", "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement
or statements in compliance with the Securities Act and pursuant to
Rule 415 under the Securities Act ("Rule 415") or any successor rule
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providing for the offering of securities on a continuous or delayed
basis ("Registration Statement"), and the declaration or ordering of
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effectiveness of the Registration Statement by the Commission;
(h) "Registration Deadline" means the ninetieth (90th) day following
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the earlier to occur of (i) the date on which the Registration
Statement is filed with the Commission and (ii) the Filing Deadline;
and
(i) "Registrable Securities" means the Conversion Shares, the Premium
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Shares, the Warrant Shares, and any other shares of Common Stock
issuable pursuant to the terms of the Certificate of Designation or
Warrants, and any shares of capital stock issued or issuable from time
to time (with any adjustments) in replacement of, in exchange for or
otherwise in respect of the Conversion Shares, the Premium Shares or
the Warrant Shares.
2. MANDATORY REGISTRATION.
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(a) On or before the Filing Deadline, the Company shall prepare and
file with the Commission a Registration Statement on Form S-3 as a "shelf"
registration statement under Rule 415 covering the resale of the number of
shares of Registrable Securities equal to the Reserved Amount (as defined in the
Securities Purchase Agreement). The Registration Statement shall state, to the
extent
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permitted by Rule 416 under the Securities Act, that it also covers such
indeterminate number of shares of Common Stock as may be required to effect
conversion of the Preferred Shares and Warrants in order to prevent dilution
resulting from stock splits, stock dividends or similar events.
(b) The Company shall use its best efforts to cause the Registration
Statement to become effective as soon as practicable following the filing
thereof, but in no event later than the Registration Deadline. The Company shall
respond promptly to any and all comments made by the staff of the Commission on
the Registration Statement (but in no event later than fifteen (15) Business
Days following the Company's receipt thereof), and shall submit to the
Commission, within three (3) Business Days after the Company learns that no
review of the Registration Statement will be made by the staff of the Commission
or that the staff of the Commission has no further comments on the Registration
Statement, as the case may be, a request for acceleration of the effectiveness
of the Registration Statement to a time and date not later than forty eight (48)
hours after the submission of such request. The Company shall maintain the
effectiveness of the Registration Statement until the earlier to occur of (i)
the date on which all of the Registrable Securities have been sold pursuant to
the Registration Statement and (ii) the date on which all of the remaining
Registrable Securities (in the reasonable opinion of counsel to the Holders) may
be immediately sold to the public without registration and without regard to the
amount of Registrable Securities which may be sold by a Holder thereof at a
given time (the period beginning on the Registration Deadline and ending on the
earlier of such dates being referred to herein as the "Registration Period").
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(c) If (A) the Registration Statement is not filed on or before the
Filing Deadline or declared effective by the Commission on or before the
thirtieth (30/th/) day following the Registration Deadline, (B) after the
Registration Statement has been declared effective by the Commission, sales of
Registrable Securities cannot be made by a Holder under the Registration
Statement for any reason not within the exclusive control of such Holder (other
than during a Blackout Period or with respect to such Registrable Securities as
are then freely saleable pursuant to Rule 144(k) under the Securities Act), or
(C) the Common Stock is not listed and freely tradeable on the Nasdaq National
Market, the Nasdaq SmallCap Market, the American Stock Exchange or the New York
Stock Exchange (each of (A), (B) or (C) being referred to herein as a "Default
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Event"), the Company shall pay to each Holder an amount equal to the lesser of
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(x) one and one half percent (1.5%) per thirty calendar day period (prorated for
any period of less than thirty calendar days) and (y) the highest rate permitted
by applicable law, times the Stated Value of the Preferred Shares then held by
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such Holder, accruing daily and compounded monthly, from the date on which a
Default Event occurs until the date on which such Default Event and any and all
other Default Events have been cured and are no longer continuing. The amounts
paid or payable by the Company hereunder shall be in addition to any other
remedies available to each Holder at law or in equity or pursuant to the terms
hereof or the Securities Purchase Agreement, or otherwise. Payments of such
amounts pursuant hereto shall be made in immediately available funds within five
(5) Business Days after the end of each period that gives rise to such
obligation, provided that, if any such period extends for more than thirty (30)
days, payments shall be made at the end of each thirty-day period.
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3. PIGGYBACK REGISTRATION.
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If at any time prior to the expiration of the Registration Period, (i)
the Company proposes to register shares of Common Stock under the Securities Act
in connection with the public offering of such shares for cash (other than a
registration relating solely to the sale of securities to participants in a
Company stock plan or employee stock award or a registration on Form S-4 under
the Securities Act or any successor or similar form registering stock issuable
upon a reclassification, a business combination involving an exchange of
securities or an exchange offer for securities of the issuer or another entity,
or a registration statement on Form S-3 covering the resale of securities issued
in connection with a corporate acquisition) (a "Proposed Registration") and (ii)
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a registration statement covering the sale of all of the Registrable Securities
is not then effective and available for sales thereof by the Holders, the
Company shall, at such time, promptly give each Holder written notice of such
Proposed Registration. Each Holder shall have twenty (20) days from its
receipt of such notice to deliver to the Company a written request specifying
the amount of Registrable Securities that such Holder intends to sell and such
Holder's intended method of distribution. Upon receipt of such request, the
Company shall use its best efforts to cause all Registrable Securities which the
Company has been requested to register to be registered under the Securities Act
to the extent necessary to permit their sale or other disposition in accordance
with the intended methods of distribution specified in the request of such
Holder; provided, however, that the Company shall have the right to postpone or
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withdraw any registration effected pursuant to this Section 3 without obligation
to the Holder. If, in connection with any underwritten public offering for the
account of the Company or for shareholders of the Company that have contractual
rights to require the Company to register shares of Common Stock, the managing
underwriter(s) thereof shall impose a limitation on the number of shares of
Common Stock which may be included in the Registration Statement because, in the
judgment of such underwriter(s), marketing or other factors dictate such
limitation is necessary to facilitate such offering, then the Company shall be
obligated to include in such Registration Statement only such limited portion of
the Registrable Securities with respect to which each Holder has requested
inclusion hereunder as such underwriter(s) shall permit. Any such exclusion of
Registrable Securities shall be made pro rata among the Holders seeking to
include Registrable Securities in the Registration Statement, in proportion to
the number of Registrable Securities sought to be included by such Holders;
provided, however, that the Company shall not exclude any Registrable Securities
unless the Company has first excluded all outstanding securities, the holders of
which are not entitled to inclusion of such securities in such Registration
Statement or are not entitled to pro rata inclusion with the Registrable
Securities; and provided, further, that, after giving effect to the immediately
preceding proviso, any exclusion of Registrable Securities shall be made pro
rata with holders of other securities having the right to include such
securities in the Registration Statement (which securities shall include those
held by Go2Net, Inc. or any other strategic investor to which the Company grants
registration rights in the future).
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4. OBLIGATIONS OF THE COMPANY.
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In addition to performing its obligations hereunder, including without
limitation those pursuant to paragraphs 2(a) and 2(b) above, the Company shall:
(a) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to comply with the
provisions of the Securities Act or to maintain the effectiveness of the
Registration Statement during the Registration Period, or as may be reasonably
requested within a reasonable time prior to any proposed sale by a Holder in
order to incorporate information concerning such Holder or such Holder's
intended method of distribution;
(b) secure the listing of all Registrable Securities on the Nasdaq
National Market prior to the date on which the Registration Statement relating
to such Registrable Securities becomes effective;
(c) furnish to each Holder such number of copies of the prospectus
included in such Registration Statement, including a preliminary prospectus, if
any, in conformity with the requirements of the Securities Act, and such other
documents as such Holder may reasonably request in order to facilitate the
disposition of such Holder's Registrable Securities;
(d) use all commercially reasonable efforts to register or qualify the
Registrable Securities under the securities or "blue sky" laws of such
jurisdictions within the United States as shall be reasonably requested from
time to time by a Holder, and do any and all other acts or things which may be
necessary or advisable to enable such Holder to consummate the public sale or
other disposition of the Registrable Securities in such jurisdictions; provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such jurisdiction;
(e) in the event of an underwritten public offering of the Registrable
Securities, enter into (together with all Holders proposing to distribute
Registrable Securities through such underwriting) and perform its obligations
under an underwriting agreement, in usual and customary form reasonably
acceptable to the Company, with the managing underwriter of such offering;
(f) notify each Holder immediately upon the occurrence of any event as
a result of which the prospectus included in such Registration Statement, as
then in effect, contains an untrue statement of material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and as promptly as practicable, prepare, file and furnish to each Holder a
reasonable number of copies of a supplement or an amendment to such prospectus
as may be necessary so that such prospectus does not contain an untrue statement
of material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
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(g) use all commercially reasonable efforts to prevent the issuance of
any stop order or other order suspending the effectiveness of such Registration
Statement and, if such an order is issued, to obtain the withdrawal thereof at
the earliest possible time and to notify each Holder of the issuance of such
order and the resolution thereof;
(h) furnish to each Holder, on the date that such Registration
Statement becomes effective, (x) a letter, dated such date, of outside counsel
representing the Company (and reasonably acceptable to such Holder) addressed to
such Holder, confirming the effectiveness of the Registration Statement and, to
the knowledge of such counsel, the absence of any stop order, and (y) in the
case of an underwriting, (A) an opinion addressed to the underwriters, dated
such date, of such outside counsel, in such form and substance as is required to
be given to such underwriters, and (B) a letter addressed to such underwriters,
dated such date, from the Company's independent certified public accountants, in
such form and substance as is required to be given by the Company's independent
certified public accountants to such underwriters;
(i) provide each Holder and its representatives (subject to, upon the
request of the Company with respect to any such representative, the execution of
a confidentiality agreement reasonably satisfactory to the Company by such
representative) the opportunity to conduct a reasonable inquiry of the Company's
financial and other records during normal business hours and make available its
officers, directors and employees for questions regarding information which such
Holder may reasonably request in order to fulfill any due diligence obligation
on its part;
(j) permit counsel retained for such purpose by each Holder to review
the Registration Statement and all amendments and supplements thereto, and any
comments made by the staff of the Commission and the Company's responses
thereto, within a reasonable period of time prior to the filing thereof with the
Commission (or, in the case of comments made by the staff of the Commission,
within a reasonable period of time following the receipt thereof by the Company)
and amend such materials in accordance with the comments of such counsel;
provided, however, that if such counsel has not delivered comments concerning
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such materials to the Company on or before the second (2d) Business Day
following it receipt thereof, the Company may deem the Holder represented by
such counsel to have waived its right of review and comment hereunder,
(k) refrain during the period of one hundred and eighty (180) days
following the Effective Date from allowing any registration statement covering
the Common Stock (other than the Registration Statement(s) required to be filed
hereunder) to be declared effective by the Commission, other than a registration
statement relating to the issuance or resale of securities pursuant to (i) an
employee benefit plan or program duly adopted by the Company and in effect on
the date hereof, (ii) any options or warrant outstanding on the date hereof,
(iii) any firm-commitment underwritten public offering of securities or (iv) any
issuance of Equity Securities in connection with a strategic investment or
acquisition which, in either such case, is not effected for the primary purpose
of raising equity capital;
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(l) provide written notice to each Holder (i) immediately upon the
imposition of a Blackout Period and (ii) immediately upon the cessation of any
such Blackout Period. The Company agrees that it will not disclose any material,
non-public information to any Holder regarding the reasons for imposing a
Blackout Period, except to a Holder who specifically requests in writing such
information and who agrees to maintain the confidentiality of such information
until it is made public other than by or through such Holder.
5. OBLIGATIONS OF EACH HOLDER.
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In connection with the registration of the Registrable Securities pursuant
to the Registration Statement, each Holder shall:
(a) furnish to the Company in writing such information regarding
itself and the intended method of disposition of Registrable Securities as the
Company shall reasonably request in order to effect the registration thereof;
(b) upon receipt of any notice from the Company of the happening of
any event of the kind described in paragraphs 4(f), 4(g) or 4(l), immediately
discontinue any sale or other disposition of Registrable Securities pursuant to
the Registration Statement until the filing of an amendment or supplement as
described in paragraph 4(f), withdrawal of the stop order referred to in
paragraph 4(g) or cessation of the Blackout Period referred to in paragraph
4(l);
(c) in the event of an underwritten offering of the Registrable
Securities, enter into a customary and reasonable underwriting agreement and
execute such other documents as the managing underwriter for such offering may
reasonably request;
(d) to the extent required by applicable law, deliver a prospectus to
the purchaser of Registrable Securities;
(e) notify the Company when it has sold all of the Registrable
Securities theretofore held by it; and
(f) promptly notify the Company in the event that any information
supplied by such Holder in writing for inclusion in the Registration Statement
or related prospectus is untrue or omits to state a material fact required to be
stated therein or necessary to make such information not misleading in light of
the circumstances then existing.
6. INDEMNIFICATION.
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In the event that any Registrable Securities are included in a Registration
Statement under this
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Agreement:
(a) To the extent permitted by law, the Company shall indemnify and
hold harmless each Holder, the officers, directors, employees and agents of such
Holder, and each person, if any, who controls such Holder within the meaning of
the Securities Act or the Securities Exchange Act of 1934, as amended (the "1934
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Act"), against any losses, claims, damages, liabilities or reasonable out-of-
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pocket expenses (whether joint or several) (collectively, including legal or
other expenses reasonably incurred in connection with investigating or defending
same, "Losses"), insofar as any such Losses arise out of or are based upon (i)
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any untrue statement or alleged untrue statement of a material fact contained in
such Registration Statement, including any preliminary prospectus, if any, or
final prospectus contained therein or any amendments or supplements thereto, or
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. Subject to the
provisions of paragraph 6(c) below, the Company will reimburse such Holder, and
each such officer, director, employee, agent or controlling person for any legal
or other expenses as reasonably incurred by any such entity or person in
connection with investigating or defending any Loss; provided, however, that the
foregoing indemnity shall not apply to amounts paid in settlement of any Loss if
such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be obligated to
indemnify any person for any Loss to the extent that such Loss arises out of or
is based upon and in conformity with written information furnished by such
person expressly for use in such Registration Statement; and provided, further,
that the Company shall not be required to indemnify any person to the extent
that any Loss results from such person selling Registrable Securities (i) to a
person to whom there was not sent or given, at or prior to the written
confirmation of the sale of such shares, a copy of the prospectus, as most
recently amended or supplemented, if the Company has previously furnished or
made available copies thereof or (ii) during any period following written notice
by the Company to such Holder of an event described in paragraph 4(f), 4(g) or
4(l).
(b) To the extent permitted by law, each Holder, acting severally and
not jointly, shall indemnify and hold harmless the Company, the officers,
directors, employees, agents and representatives of the Company, and each
person, if any, who controls the Company within the meaning of the Securities
Act or the 1934 Act, against any Losses to the extent (and only to the extent)
that any such Losses arise out of or are based upon and in conformity with
written information furnished by such Holder expressly for use in such
Registration Statement; and such Holder will reimburse any legal or other
expenses as reasonably incurred by the Company and any such officer, director,
employee, agent, representative, or controlling person, in connection with
investigating or defending any such Loss; provided, however, that the foregoing
indemnity shall not apply to amounts paid in settlement of any such Loss if such
settlement is effected without the consent of such Holder, which consent shall
not be unreasonably withheld; provided, that, in no event shall any indemnity
under this paragraph 6(b) exceed the net proceeds resulting from the sale of the
Registrable Securities sold by such Holder under the Registration Statement.
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(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in and to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonably incurred fees and expenses of one such counsel to
be paid by the indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate under
applicable standards of professional conduct due to actual or potential
conflicting interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, to the extent prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under this Section 6 with respect to such action, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 6 or
with respect to any other action unless the indemnifying party is materially
prejudiced as a result of not receiving such notice.
(d) In the event that the indemnity provided in paragraph 6(a) or 6(b)
is unavailable or insufficient to hold harmless an indemnified party for any
reason, the Company and each Holder agree, severally and not jointly, to
contribute to the aggregate Losses to which the Company or such Holder may be
subject in such proportion as is appropriate to reflect the relative fault of
the Company and such Holder in connection with the statements or omissions which
resulted in such Losses; provided, however, that in no case shall such Holder be
responsible for any amount in excess of the proceeds resulting from the sale of
the Registrable Securities sold by it under the Registration Statement.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Company or by such
Holder. The Company and each Holder agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph 6(d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to indemnification or
contribution from any person who is not guilty of fraudulent misrepresentation.
For purposes of this Section 6, each person who controls a Holder within the
meaning of either the Securities Act or the Exchange Act and each officer,
director, employee or agent of such Holder shall have the same rights to
contribution as such Holder, and each person who controls the Company within the
meaning of either the Securities Act or the Exchange Act and each officer,
director, employee or agent of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph 6(d).
(e) The obligations of the Company and each Holder under this Section
6 shall survive the conversion of the Preferred Shares and exercise of the
Warrants in full, the completion of any offering of Registrable Securities
pursuant to a Registration Statement under this Agreement, or
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otherwise.
7. REPORTS.
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With a view to making available to each Holder the benefits of Rule
144 under the Securities Act ("Rule 144") and any other similar rule or
regulation of the Commission that may at any time permit such Holder to sell
securities of the Company to the public without registration, the Company agrees
to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports and other
documents required to be filed by the Company under the Securities Act and the
1934 Act; and
(c) furnish to such Holder, so long as such Holder owns any
Registrable Securities, forthwith upon written request (i) a written statement
by the Company, if true, that it has complied with the reporting requirements of
Rule 144, and the 1934 Act, (ii) to the extent not publicly available through
the Commission's XXXXX database, a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing such Holder of any rule or regulation of the Commission which permits
the selling of any such securities without registration.
8. MISCELLANEOUS.
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(a) Expenses of Registration. All expenses, other than underwriting
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discounts and commissions and fees and expenses of one counsel to the Holders,
incurred in connection with the registrations, filings or qualifications
described herein, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, the fees and disbursements of
counsel for the Company, and the fees and disbursements incurred in connection
with the opinion and letter described in paragraph 4(h) hereof, shall be borne
by the Company.
(b) Amendment; Waiver. Any provision of this Agreement may be amended
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only pursuant to a written instrument executed by the Company and each Holder.
Any waiver of the provisions of this Agreement may be made only pursuant to a
written instrument executed by the party against whom enforcement is sought.
Any amendment or waiver effected in accordance with this paragraph shall be
binding upon each Holder, each future Holder, and the Company. The failure of
any party to exercise any right or remedy under this Agreement or otherwise, or
the delay by any party in exercising such right or remedy, shall not operate as
a waiver thereof.
(c) Notices. Any notice, demand or request required or permitted to
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be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and shall be
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deemed given (i) when delivered personally or by verifiable facsimile
transmission (with an original to follow) on or before 5:00 p.m., eastern time,
on a Business Day or, if such day is not a Business Day, on the next succeeding
Business Day, (ii) on the next Business Day after timely delivery to a
nationally-recognized overnight courier and (iii) on the day actually received
after deposit in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed to the parties as follows:
If to the Company:
Asymetrix Learning Systems, Inc.
000 000/xx/ Xxxxxx XX
Xxxxxxxx, XX 00000
Attn: General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Fenwick & West, LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
and if to any Holder, to such address as shall be designated by such Holder in
writing to the Company.
(d) Termination. This Agreement shall terminate on the earlier to
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occur of (a) the end of the Registration Period and (b) the date on which all of
the Registrable Securities have been publicly distributed; but any such
termination shall be without prejudice to (i) the parties' rights and
obligations arising from breaches of this Agreement occurring prior to such
termination and (ii) the indemnification and contribution obligations under this
Agreement.
(e) Assignment. Upon the transfer of Preferred Shares convertible
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into 250,000 or more Conversion Shares (or, if less, constituting all of the
Preferred Shares owned by a Holder), the Warrant or Registrable Securities by a
Holder, the rights of such Holder hereunder with respect to the securities so
transferred shall be assigned automatically to the transferee thereof as long
as: (i) the Company is, within a reasonable period of time following such
transfer, furnished with written notice of the name and address of such
transferee, (ii) the transferee agrees in writing with the Company to be bound
by all of the provisions hereof and (iii) such transfer is made in accordance
with the applicable requirements of the Securities Purchase Agreement, the
Certificate of Designation or the Warrant, as
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the case may be; provided, however, that the registration rights granted in this
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Agreement shall not be transferred to any person or entity that receives any
such security pursuant to an effective registration statement under the
Securities Act or pursuant to a transaction under Rule 144 or any successor
provision thereto.
(f) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument. This Agreement, once
executed by a party, may be delivered to any other party hereto by facsimile
transmission.
(g) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware without regard to the
conflict of laws provisions thereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first-above written.
ASYMETRIX LEARNING SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
XXXXXXXX CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx, President
-13-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first-above written.
ASYMETRIX LEARNING SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
VULCAN VENTURES
By: /s/Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
-14-
